Clarence Ferguson Complainant v Stressman Thomas Edzil Thomas Guy Alexander Defendants [ECSC]

• Jurisdiction: Grenada
• Judge: BENJAMIN, J
• Judgment Date: 31 August 2011
• Judgment citation (vLex): [2011] ECSC J0831-2
• Court: High Court (Grenada)
• Docket Number: SUIT NO. GDAHCV 2004/0047
• Date: 31 August 2011

[2011] ECSC J0831-2

THE EASTERN CARIBBEAN SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

(HIGH COURT OF JUSTICE)

(CIVIL)

SUIT NO. GDAHCV 2004/0047

Between:

Clarence Ferguson

Complainant

and

Stressman Thomas

Edzil Thomas

Guy Alexander

Defendants

BENJAMIN, J

1 This suit was brought in the name of Clarence Ferguson who subsequently died on December 18, 2006. By Order of Court dated the 24^th day of August, 2007 Ruggles Ferguson, the son and personal representative of the estate of the said Clarence Ferguson was substituted as Claimant. The suit was originally commenced by the said Ruggles Ferguson in his capacity as the dully constituted attorney for the said Clarence Ferguson.

2 The second-named Defendant withdrew from the proceedings ahead of the trial and he took no part in defending the matter. The Claimant elected not to pursue any remedies against the second named Defendant. The third named Defendant died before trial and no substitution was made. Again, no remedies were sought against the third-named Defendant by the Claimant. Accordingly, the claim proceeded solely against the first-named Defendant, Stressman Thomas.

3 The subject-matter of the proceedings is property situate at Palmiste in the parish of St. John ownership of which is claimed by the Claimant as being comprised in the conveyance dated the 17^th day of April, 2002 recorded in the Deeds and Lands Register of Grenada in Liber 6-2003 at page 734. In the said deed the property was conveyed pursuant to a partition order dated the 16^th day of January 1961.

4 The Claimant seeks the following relief against the first-named Defendant:

• 1. "An injunction restraining the first-named Defendant whether by himself, his servants and/or agents from trespassing, exercising acts of ownership over, or in any way interfering with the said property.

• 2. Damages for trespass

• 3. Such further or other relief as to this Honourable Court may seem just.

• 4. Costs".

5 The first-named Defendant in the Amended Defence has asserted ownership of the disputed property as forming part of the estate known as "Poterie Estate" which lies in boundary with Palmiste Estate. In addition, the Amended Defence has pleaded that the Claimant's right, if any, have been extinguished by the operation of sections 4, 17 and 27 of the Limitation of Actions Act, Chapter 173. The first-named Defendant has counterclaimed against the Claimant for the following orders:

• 1. An injunction retraining the Claimant whether by himself his agents and/or servants or howsoever from entering on the said lot of land and from exercising any acts of ownership thereon.

• 2. A Declaration that the Defendants are the owners of the said lot of land.

• 3. Such further or other relief as this Honourable Court deems just.

• 4. Costs.

BACKGROUND

6 The claim was filed as a result of alleged acts of trespass by the first named Defendant and his servants and/or agents entering upon the said property on January 11, 12 and 13, 2004. The entry was made for the purpose of conducting a survey, in furtherance of which boundary poles and other marks were placed on the land.

7 In the Amended Defence, the first-named Defendant admitted that he and the third-named Defendant, a land surveyor, did enter on the said property to carry out a survey. The first-named Defendant claims ownership of the disputed lot of land.

8 The conveyance to Clarence Ferguson was made pursuant to an order for partition in theproceedings involving the beneficiaries of the will of Ruggles Low Ferguson, deceased, who was the father of Clarence Fergusson, whose entitlement was one undivided fourth part or share of the plantation or estate called "Palmiste" situate in the parish of St. John. The property conveyed was described as containing sixty-nine (69) acres and three (3) roods as delineated on plan dated October 23, 1961 by W. Bertrand, a licensed land surveyor.

THE CLAIMANT'S CASE

9 The case for the Claimant was founded upon the testimonies of Ruggles Ferguson, Whitney Thomas, Carlyle Glean and Terrence Smith and supported by the Indenture of conveyance dated the 17^th day of April, 2002.

10 Ruggles Ferguson stated that Clarence Ferguson had been the owner of and in continuous and undisturbed possession of the said property for over forty (40) years subsequent to the order of Court dated the 16^th day of January 1962. This witness recalled that another witness, Whitney Thomas, had been in charge of the property, along with one Clarence Regis also known as "Sherry", and had tended his cows on the land. Whitney Thomas confirmed that he had been going on the land for the previous fifteen (15) years to care for his cows as well as to hunt, dig yams and pick coconuts all with the permission of "Mr. Fergy", the father of Ruggles Ferguson.

11 In his witness statement, Ruggles Ferguson stated that for several years up to the year 2000 Clarence Ferguson had contracted with companies including Caribbean Consolidated Contractors Ltd. for the removal of stones from the said property including the portion of land claimed by the first-named Defendant without any objection being raised by the first-named Defendant. This assertion of fact was never challenged by the first-named Defendant.

12 Whitney Thomas said the he had been going on the said property with the permission of Clarence Ferguson to rear his cows. He recalled that one John Thomas also reared cows on the land.

13 It is Whitney Thomas who provided the first hand evidence of the entry of the first-named Defendant, and Stressman, Thomas onto the property in January, 2004. He said he went to Palmiste to take care of his cows. In the course of a conversation, the first-named Defendant, told him that he had land there and pointed to the Claimant's land. At the time, the first-named Defendant and Mr. Guy Alexander were standing in the White Gate area close to the Claimant's land. Whitney Thomas went on to recall seeing the two men and others go onto the Claimaint's land. He observed the first-named Defendant giving directions, trees being cut down with a chain saw and clearings being made on the land. He also saw Mr. Alexander establishing a line and poles being planted.

14 The witness identified the land where the poles were planted as the area from which stones had been taken a few years earlier.

15 Carlyle Glean is a civil engineer by profession and has resided at Palmiste since 1994 on land purchased from Donald Ferguson, the brother of Clarence Ferguson. This witness testified that in January 2004 he visited the property along with Ruggles Ferguson, Terrence Smith and Whitney Thomas when iron poles were removed. Mr. Glean stated that he was familiar with the boundaries of the land as he was present at a survey conducted by Mr. Godwin Alexis between 1998 and 2001. In addition, he stated that he has passed the property on a daily basis since the 1970's and he has never observed the first-named Defendant on the property.

16 Terrence Smith is a civil and sanitary engineer and asserts familiarity with the property from 1985. He confirmed arrangements made with two companies for the quarrying of rocks from a twelve (12) acre area to the south-west end of the property between 1999 and 2002.However, during cross-examination he was unable to say what area comprises White Gate or whether it is comprised in the said property identified in the Claimant's conveyance.

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